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Obtaining medical records in medical negligence claims

A patient’s medical records are usually a vital tool in establishing whether they might have a claim for negligent medical treatment.

If a person is concerned that they may have received very poor care (for example, if they have undergone surgery which they feel has gone wrong), then they may wish to start the process of investigation themselves by obtaining a copy of their medical records. Alternatively, they may wish to ask a solicitor to do this on their behalf.

The Pre-Action Protocol for the Resolution of Clinical Disputes which essentially sets down best practice for how clinical negligence claims should conducted before court proceedings, states that the patient or their legal advisors should:

Provide sufficient information in their request so that the hospital or other health care provider will know how potentially serious the alleged failure in care was and/or its consequences;

Be as specific as possible about the records which are needed to initially investigate whether there might be a claim; and

Include a request for any documents created in relation to an adverse incident, notifiable safety incident or complaint.

The individual or their solicitors must provide a form of authority, usually signed by the individual (although see below for exceptions to this), with the request for records.
If the patient has been treated at a number of different NHS hospitals, then applications should be made to each of the hospital trusts involved. In some cases the hospitals involved may be under the same trust but this is not always the case and it is important to ensure that all relevant records are obtained.

Point 3 above may include situations where a patient has died in the hospital’s care and a report has been prepared by the hospital concerning the death. Such reports can be very useful in helping to determine at an early stage whether there has been a failure in the care and whether the death could have been prevented.

If a patient has died during or following treatment or that patient is unable to apply for a copy of their records themselves, either because they are under the age of 18 or because they are thought to be mentally incapable of making the decision to do so, then another party can apply for the records on their behalf.

In respect of a child under the age of 18, their parent or guardian may apply for the records. Where a person is said to lack the mental capacity to apply for the records themselves, then a person acting as their litigation friend can do this for them, provided that it is in their best interests.

The process for making a request for records is slightly different where a patient has died. Under the Access to Health Records Act 1990, the request can only be made by:

The Personal Representative of the deceased person or;

Any person who may have a claim resulting from the deceased’s death.

It is usual that the person applying will have to provide evidence, such as a copy of the Grant of Probate, or an explanation of their potential claim arising out of the death, before they will be allowed access to the records.

Once a request for medical records has been received, the hospital, GP or other health care provider has 40 days to provide a copy of the records. They are allowed to charge a reasonable fee for the records to a maximum of £50 (save that there is no limit where the patient has died). They may however ask for payment in advance of release of the records which can delay the provision of the records if they do not seek payment as soon as the request for records is received.

If there is any reason why the hospital or other health care provider cannot release copies of the records within 40 days of the request and/or payment, they must explain the reasons for the delay and what they are doing to resolve it.

If the health care provider still fails to release the records or fail to explain any delay, then the patient or representative (such as a solicitor) can apply to the Court for an order that the records must be released. The Court can also impose costs sanctions on the health care provider for their failure to release the records within the time limits.

Once the records are received, the patient or their solicitor will usually read through them to see if there might be grounds to bring a claim for negligent treatment. Some of the records may be too technical to be understood by anyone without a medical background but the records should give a flavour of the care received and may enable possible failings to be identified.

It may then be necessary for the patient’s solicitor to obtain a report or opinion from an independent medical expert in order to establish whether there was negligent treatment or whether such treatment made a difference to the outcome, but as a first step obtaining the records is usually very useful and should be done at the outset of any potential claim.

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